While much of Washington grapples with international crises, chronic economic troubles and upcoming midterm elections, Senate Democrats are steadily pushing forward with what they hope will become the 28th Amendment to the U.S. Constitution.
Framed by Senate Majority Leader Harry Reid as a response to campaign spending by the conservative billionaire Koch brothers, the proposed amendment, written by Democrat Sens. Tom Udall and Michael Bennet, would vastly increase the power of Congress to control elections and political speech.
The problem is, Democrats aren’t quite sure exactly what the amendment should say. In a move that received virtually no attention, they recently rewrote the measure — and in the process revealed its fatal flaw.
This is the heart of the amendment as originally written by Udall and Bennet: “To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to federal elections, including through setting limits on — “(1) the amount of contributions to candidates for nomination for election to, or for election to, federal office; and “(2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.”
“We need to make sure that there are reasonable, commonsense limitations in place to prevent wealthy special interests from tarnishing our democratic process,” Democrat Sen. Dick Durbin said in a June 18 meeting of the Judiciary Subcommittee on the Constitution.
To show how reasonable the measure is, Durbin proposed a new wording for the amendment. This is the heart of the revised version: “To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”
The big difference is the insertion of the word “reasonable.” But who decides what is reasonable?
“I tell you, I am not content to have your free speech rights protected by the reasonableness of members of Congress, Republicans or Democrats,” Sen. Ted Cruz said to Durbin.
Cruz also reminded the subcommittee that political speech can involve movies and books, and that corporations include not only Koch Industries, but organizations like the NAACP and the Sierra Club. “Under the text of this amendment, could Congress ban political movies?” Cruz asked Durbin. “Could Congress ban books?”
An exasperated Durbin responded: “What the senator has suggested in his parade of horribles … is not going to carry the day in this debate, nor with the American people.”
“Should we be able to ban movies?” Cruz persisted. “Yes or no?”
“No,” Durbin said, “and there is nothing about banning movies in this amendment.” With that, Durbin pounded the gavel and declared, “The subcommittee stands adjourned.”
Democrats passed the amendment; that was never in doubt. But the little-noticed debate showed that with a proposal as far-reaching and deeply troubling as this constitutional amendment, inserting the word “reasonable” doesn’t make it so.
Byron York is chief political correspondent for The Washington Examiner.